Citation Nr: 1017745
Decision Date: 05/13/10 Archive Date: 05/26/10
DOCKET NO. 07-10 602 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for bilateral pes
planus.
4. Entitlement to service connection for a skin condition,
also claimed as ringworm, to include as caused by herbicide
exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kathy Diener, Associate Counsel
INTRODUCTION
The Veteran had active service from September 1966 to
September 1968.
This matter comes before the Board of Veteran's Appeals
(Board) on appeal from a June 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California, which, inter alia, denied claims for
service connection for pes planus, PTSD, a skin condition,
and bilateral hearing loss and tinnitus. The Veteran
perfected an appeal with respect to all issues.
Subsequently, service connection for PTSD was granted in an
October 2008 rating decision. As this represents a complete
grant of the benefit sought on appeal, the claim for PTSD is
no longer before the Board.
The issue of service connection for a skin disorder is
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. Hearing loss did not begin during service or within one
year of separation and has not been shown to be otherwise
related to service.
2. Tinnitus did not begin during service and has not been
shown to be otherwise related to service.
3. Pes planus was not incurred or aggravated during service
and has not been shown to be otherwise related to service.
CONCLUSIONS OF LAW
1. Hearing loss was not incurred in or aggravated by the
Veteran's active military service, nor may sensorineural
hearing loss be presumed to have been so incurred. 38
U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2009).
2. The criteria for service connection for tinnitus are not
met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.159, 3.303 (2009).
3. The criteria for service connection for pes planus are
not met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304,
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159;
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). The notice should also address
the rating criteria or effective date provisions that are
pertinent to the appellant's claim. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
The RO provided the appellant pre-adjudication notice by
letter dated in January 2006. Complete notice was sent in
June 2006, and the claim was readjudicated in a March 2007
statement of the case and an October 2008 supplemental
statement of the case. Mayfield, 444 F.3d at 1333.
VA has obtained service treatment records, afforded the
appellant physical examinations, and obtained medical
opinions as to the etiology and severity of disabilities.
The Board notes that no VA examination was conducted to
obtain an opinion as to the etiology and severity of the
Veteran's claimed pes planus. In disability compensation
claims, VA must provide a VA medical examination when there
is (1) competent evidence of a current disability or
persistent or recurrent symptoms of a disability, (2)
evidence establishing that an event, injury, or disease
occurred in service or establishing certain diseases
manifesting during an applicable presumptive period for which
the claimant qualifies, (3) an indication that the disability
or persistent or recurrent symptoms of a disability may be
associated with the Veteran's service or with another
service-connected disability, but (4) insufficient competent
medical evidence on file for the VA to make a decision on the
claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R.
§ 3.159(c)(4)(i). The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79, 83 (2006).
This standard is not met with regard to this claim because
there is no indication that the disability may be associated
with the Veteran's military service. No medical evidence has
suggested a causal relationship between his current pes
planus and service, and the Veteran has not reported
continuous symptomatology since service. In a January 2007
statement, he alleged only that his foot condition began
"soon following [his] separation" and worsened
progressively. Thus, the evidence does not suggest that this
condition may be associated with service, and VA was not
required to conduct an examination.
All known and available records relevant to the issues
decided herein have been obtained and associated with the
appellant's claims file; and the appellant has not contended
otherwise. VA has substantially complied with the notice and
assistance requirements and the appellant is not prejudiced
by a decision on the claim at this time.
Service Connection Claims
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order
to prevail on the issue of service connection there must be
competent evidence of a current disability; medical evidence,
or in certain circumstances, lay evidence of in-service
occurrence or aggravation of a disease or injury; and
competent evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331
(Fed. Cir. 2006).
In order to prevail on the issue of service connection there
must be competent evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
competent evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331
(Fed. Cir. 2006).
Hearing Loss and Tinnitus
The Veteran is seeking service connection for bilateral
hearing loss which he contends he suffers as a result of
noise exposure in service. His Form DD-214 establishes that
he was a light infantryman, and the Veteran is in receipt of
the Combat Infantry Badge. Noise exposure in service is
conceded.
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies at 500,
1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater;
when the auditory thresholds for at least three of the
frequencies at 500, 1000, 2000, 3000, and 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385.
Service connection for certain chronic diseases, including
organic diseases of the nervous system such as sensorineural
hearing loss, will be presumed to have been incurred in
service if they are manifest to a compensable degree within
the first year following active service. 38 U.S.C.A. § 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the
requirements for service connection for hearing loss as
defined in 38 C.F.R. § 3.385 need not be shown by the results
of audiometric testing during a claimant's period of active
service in order for service connection to be granted. The
United States Court of Appeals for Veterans Claims (Court)
has held that 38 C.F.R. § 3.385 does not prevent a claimant
from establishing service connection on the basis of post-
service evidence of hearing loss related to service when
there were no audiometric scores reported at separation from
service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
The Court has also held that the regulation does not
necessarily preclude service connection for hearing loss that
first met the regulation's requirements after service.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a
claimant who seeks to establish service connection for a
current hearing disability must show, as is required in a
claim for service connection for any disability, that a
current disability is the result of an injury or disease
incurred in service, the determination of which depends on a
review of all the evidence of record, including that
pertinent to service. 38 U.S.C.A. §1110; 38 C.F.R. §§ 3.303
and 3.304; Hensley, 5 Vet. App. at 159-60.
The Veteran's service treatment records show that he
underwent an audiological evaluation during his induction
physical examination in August 1966. At that time, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
10
10
10
10
10
Speech recognition ability was not noted.
There are no complaints of or treatment for hearing loss,
tinnitus, or any other ear disability noted in the service
treatment records. No audiological scores were reported
during the Veteran's separation physical examination in
September 1968. However, the Veteran reported that he had no
hearing loss.
The Veteran was afforded a VA audiological evaluation in
February 2008, in which pure tone thresholds, in decibels,
were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
15
20
35
LEFT
5
15
35
25
35
Speech audiometry revealed speech recognition ability of 96
percent in each ear. The examiner noted the Veteran's
history of military noise exposure with no significant
occupational or recreational noise exposure after service.
She diagnosed bilateral mild to severe high-frequency
sensorineural hearing loss beginning at 6000 Hz, although
hearing in the right ear was within normal limits from 500 to
4000 Hz. The examiner stated that the sloping configuration
of the audiogram is more indicative of hearing loss due to
age rather than noise trauma. Based on the audiometric
configuration, claims file review, and the Veteran's reported
history, she concluded that it is less likely than not that
hearing loss and tinnitus are related to the Veteran's
service.
After careful consideration, the Board concludes that service
connection is not warranted for the Veteran's claimed
bilateral hearing loss and tinnitus. Although the evidence
demonstrates that he currently has tinnitus and left ear
hearing loss, nothing in the record suggests that these
conditions are related to service. The Veteran did not
complain of hearing loss or tinnitus in service, and he did
not report hearing loss or tinnitus at separation.
Furthermore, he does not contend that these conditions began
in service; rather, he asserts that noise exposure in service
caused his hearing loss and tinnitus which developed later.
The Veteran is competent to describe his experiences in
service, as well as any symptoms he has experienced which are
capable of lay observation. However, as a layperson, he is
not competent to offer a medical opinion as to the cause of
his disabilities. Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). The only competent medical opinion in the
record indicates that hearing loss and tinnitus are the
result of age and not likely related to service. Therefore,
the preponderance of the evidence is against a finding of
service connection, and the claims must be denied.
Pes Planus
The Veteran is seeking service connection for flat feet,
which he contends results from wearing combat boots in
service. Service treatment records do not document any foot
disorders at induction, and no complaints of or treatment for
foot pain or other disorders is noted. At separation, the
Veteran reported that his feet were normal, and no foot
disorders were found on examination.
The claims file contains VA treatment records dated in
October 2007, which indicate that the Veteran was diagnosed
with "flat foot condition" and pain with walking. It is
noted that he has prosthetics.
After carefully reviewing the relevant evidence, the Board
concludes that the Veteran's claimed flat foot condition is
not related to his service. There is no evidence of a foot
disorder during service, and the Veteran does not contend
that the condition began during active service. Rather, he
asserts that foot pain began "soon" after separation and
that his foot condition worsened over the years. Although
the Veteran is competent to describe the symptoms he has
experienced that are capable of lay observation, as a
layperson he is not competent to offer an opinion regarding
the cause of his claimed foot condition. Espiritu, 2 Vet.
App. at 494-95. As there is no competent medical evidence of
record relating the Veteran's pes planus to his service,
there is no basis for service connection.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for pes planus is denied.
REMAND
A review of the record discloses the need for further
development. The Veteran is seeking service connection for a
skin disorder, also claimed as ringworm, which he contends
began in service and has continued since that time. He
suggests that this condition is related to exposure to Agent
Orange in service. Service records confirm that the Veteran
served in Vietnam; therefore, exposure to herbicides is
conceded. 38 U.S.C.A. § 1116(f); 38 C.F.R.
§ 3.307(a)(6)(iii).
Service treatment records reflect that the Veteran sought
treatment for a bump behind his ear in July 1967. In
December 1967, he was treated for an abscess on his left arm.
In January 1968, he presented with lesions on his right
forearm and biceps. In April 1968, he had an encrusted
lesion with surrounding cellulitis that was warm and red. It
was noted that a pustule was drained by the patient. At the
Veteran's separation physical examination, he reported that
he had no skin diseases, and no skin disorders were observed.
The Veteran is competent to describe the subjective symptoms
he has experienced. Thus, his account of a skin disorder
which manifested in service and has persisted since then is
evidence of a chronic condition that may be related to
service, despite the lack of contemporaneous medical records
of such a condition. See Buchanan, 451 F.3d 1331 at 1137.
Therefore, a VA examination is required to determine whether
he has a current skin disorder, and, if so, whether it is in
fact causally related to any incident of service. McLendon,
20 Vet. App. at 83.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an appropriate VA
examination to determine the current nature
and likely etiology of the claimed skin
condition. The claims file must be made
available to the examiner for review prior to
the examination. The examiner should conduct
a thorough examination and provide a
diagnosis for any pathology found. For any
diagnosed condition, the examiner should
opine as to whether it is at least as likely
as not (i.e., 50 percent probability) that
any diagnosed skin condition is causally or
etiologically related to service, to include
herbicide exposure. In making this
determination, the examiner should take the
Veteran's report of his skin condition into
consideration.
A complete rationale is requested for any
opinion expressed.
2. Review the record and complete any further
development, if necessary. Thereafter,
readjudicate the issues on appeal. If any
claim remains denied, the RO should issue a
supplemental statement of the case and afford
the Veteran and his representative an
opportunity to respond. Thereafter, the case
should be returned to the Board for appellate
review.
____________________________________________
M.G. MAZZUCCHELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs